United States District Court, D. Maryland, Southern Division
J. HAZEL, United States District Judge
Primerica Life Insurance Company ("Primerica")
initiated this litigation as an interpleader action regarding
the proceeds from a life insurance policy for the late Lester
Foote. and was subsequently counter-sued by the estate of Mr.
Foote (the "Estate"), represented by Sandra Foote,
Mr. Foote's wife, acting as the Estate's personal
representative. ECF No. 104. Specifically, Mrs. Foote's
Second Amended Complaint-in-Intervention asserts a claim of
negligence against Primerica and seeks $1.4 million in
damages. Now pending before the Court is Primerica's
Motion for Summary Judgment, ECF No. 139, the Estate's
Motion for Prejudgment Interest, ECF No. 116, the
Estate's Motion for Extension of Time to Complete FRCP
26(a)(2) Disclosure, ECF No. 117, and Primerica's Cross
Motion seeking attorney's fees, ECF No. 118. No hearing
is necessary. Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Primerica's Motion for Summary Judgment and
Cross Motion for attorney's fees are granted, and the
Estate's motions for Prejudgment Interest and Extension
of Time are denied.
January 5, 2002, Lester Foole, a master plumber, completed an
application for a $1.5 million life insurance policy (the
"Policy") from Primerica. See ECF No. 48-1
at ¶¶ 12-13. On the application, Mr. Foote
designated his daughters, Leslie P. Pineda (now Leslie
Zapata), Nancy A. Pineda (now Nancy Zapata), Susana R. Pineda
(now Susana Zapata), Jennifer J. Hughes, and his son, Antoine
L. Hughes, as principal beneficiaries. See ECF No.
1-3 at 10. Under the Policy, each daughter was
entitled to receive $250, 000 upon Mr. Foote's death and
his son was entitled to $200, 000. See Id. Mr. Foote
also named his minor goddaughter, MBL, as a principal
beneficiary in the 2002 application, entitling her to $100,
000 in proceeds from the Policy. See Id. When Mr.
Foote completed the 2002 application, he indicated on the
application that these beneficiary designations were
irrevocable. See Id. ¶ 14. Pursuant to the
terms of the Policy, a beneficiary designated as irrevocable
on an application "may not be changed except with the
written consent of that Beneficiary." Id.
December 2010, Mr. Foote met with his Primerica agent, Jane
Williams, in Philadelphia and discussed the possibility of
adding Sandra Foote, whom he had married on March 31, 2010,
to the Policy. ECF No 139-4 at 4-5. On December 17, 2010, Mr.
Foote submitted a Policy Change Application to Primerica,
listing Mrs. Foote and MBL as the only beneficiaries but with
no specific dollar amount assigned to either beneficiary. ECF
No. 1-4. Prior to submitting this Application, Mr. Foote did
not obtain the written consent of the irrevocable
beneficiaries, as required under the Policy. Upon receiving
the Policy Change Application, Primerica sent a letter to Ms.
Williams informing her that the Application was insufficient
to change Mr. Foote's policy. ECF No. 139-11. Ms.
Williams discussed with Mr. Foote that his Application had
not been processed, and told him that he would need to obtain
the written consent of the existing beneficiaries if he
wanted to change the policy. Mr. Foote said that he wanted to
think about what he was going to do, and that he would
"get around to it." ECF No. 139-4 at 9-10. Mr.
Foote did not submit a subsequent Policy Change Application;
but, on October 17, 2012, he executed a Revised Operating
Agreement for his business (an LLC), which gave Mrs. Foote
and her son joint tenancy and right of survivorship over 65%
and 35% of the LLC, respectively. ECF No. 139-13.
Mr. Foote died unexpectedly without a will on December 26,
2013. See ECF No. 1 ¶ 19. Following his death,
Primerica filed the instant interpleader complaint so that
Mr. Foote's various beneficiaries and family members
could present their claims to the proceeds of the Policy.
response to the interpleader complaint, Mrs. Foote and MBL
filed counterclaims against Primerica for breach of contract,
negligence, and estoppel. See ECF No. 46; ECF No.
48. On March 16, 2015, the Court granted Primerica's
Motion to Dismiss those counterclaims, but allowed the Estate
to intervene, and suggested that it was possible that the
Estate could bring a claim against Primerica. See
ECF No. 68 at 12 n.7. The Estate subsequently brought a
complaint, ECF No. 71, which was amended twice, ECF No. 76;
ECF No. 104. In its most recent version, the complaint
alleges that Primerica was negligent in failing to add Mrs.
Foote to Mr. Foote's insurance policy, and seeks $1.4
million in damages (the amount that Mrs. Foote allegedly
would have received under a revised policy). ECF No. 104. On
September 15, 2016, the Estate filed a Motion for Prejudgment
Interest, alleging that Primerica owed interest on the life
insurance proceeds as it had not deposited them in the
Court's registry. ECF No. 116. On September 19, 2016, the
Estate filed another motion, requesting an extension of time
to complete its Fed.R.Civ.P. 26(a)(2) disclosire. ECF No.
117. On October 3, 2016, Primerica filed a cross-motion
requesting, among other things, attorneys' fees. ECF No.
118. On December 15, 2016, pursuant to a stipulation between
ihe parties, the entirety of the insurance proceeds were
deposited with the Court, and the Interpleader Defendants
agreed to have the funds distributed amongst themselves, with
an appropriate amount held back to cover potential
attorney's fees and estate taxes. ECF No. 132. Prinerica
has since moved for summary judgment on the negligence claim,
arguing that there are no disputed material facts, and that
Primerica is entitled to judgment as a matter of law. ECF No.
reasons slated below, the Court finds that Primerica is
entitled to judgment as a matter of law on the Estate's
negligence claim. After resolving the motion for summary
judgment, the Court will address the remaining motions.
judgment is appropriate if the "materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations ...,
admissions, interrogator answers, or other materials, "
Fed.R.Civ.P. 56(c), show that there is "no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party moving for summary judgment bears the
burden of demonstrating that no genuine dispute exists as to
material facts Pulliam Inv. Co. v. Cameo Props., 810
F.2d 1282, 1286 (4th Cir. 1987). If the moving party
demonstrates that there is no evidence to support the
non-moving party's case, the burden shifts to the
non-moving party to identify specific facts showing that
there is a genuine issue for trial. See Celotex, 477
U.S. at 322-23. A material fact is one that "might
affect the outcome of the suit under the governing law."
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183
(4th Cir. 2001) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). A dispute of material
fact is only "genuine" if sufficient evidence
favoring the nonmoving party exists for the trier of fact to
return a verdict for that party. Anderson, 477 U.S.
at 248. However, the nonmoving party "cannot create a
genuine issue of material fact through mere speculation or
the building of one inference upon another." Beale
v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). With this
standard in mind, the Court turns to Primerica's motion
for summary judgment and the evidentiary rulings needed to
resolve the motion.
initial matter, both parties allege that evidence relied on
by the other party is inadmissible. See ECF No. 142
at 10; ECF No. 147 at 6. When ruling on a motion for summary
judgment, courts must ensure that "affidavits must be
made on personal knowledge with such facts as would be
admissible in evidence." United States v. Hartford
Accident & Indem. Co., 168 F.Supp.3d 824, 831 (D.
Md. 2016) (citing Fed.R.Civ.P. 56(c)(4)).
the Estate asserts that there are three pieces of evidence
relied upon by Primerica that are hearsay and inadmissible
under Md. Code Ann., Cts. & Jud. Proc. § 9-116,
commonly known as Maryland's Dead Man Statute. Each piece
of evidence comes from the affidavit of Primerica's
agent, Ms. Williams, and consists of a statement allegedly
made by Mr. Foote. The statements objected to are:
• "Lester Foote discussed with Ms. Williams
possibly making a change to his Primerica Policy so that
Sandra Foote, whom he had married on March 31, 2010,
would receive some benefit from the policy. "
• "They discussed making a change so that Ms.
Foote would receive the $200, 000 that had not previously
been assigned to any beneficiary on the initial
• "On December 23, 2010, Primerica sent a letter to
Ms. Williams informing her that changes could not be made
based upon the Policy Change Application that it had
received. See Ex. H. Ms. Williams discussed the letter with
Lester Foote. Ex. A at 59. She told Lester Foote that if he
wanted to make Sandra Foote the beneficiary of the Primerica
Policy, he would need to have the existing beneficiaries
consent in writing to being removed from the Primerica
Policy. Id. at 66- 67. Mr. Foote explained that
he wanted to think about what he was going to do and that he
would get around to it. "
ECF No. 142 at 10-11 (emphasis in original).
Primerica argues that "Sandra Foote's [deposition]
testimony regarding what Lester Foote allegedly said to Jane
Williams in the summer of 201 land in 2013 after the death of
Mr. Foote's mother is inadmissible under Maryland's
Dead Man's Statute." ECF No. 147 at 6.
Court addresses the parties' arguments under
Maryland's Dead Man Statute first, and then turns to ...